Serwecinski (Migration)

This matter concerned an application for a Temporary Business Entry (Class UC) visa, subclass 457 (Temporary Work (Skilled)), brought by an applicant whose nominating employer, S L Insulation Pty Ltd, had initially had its nomination refused by the Department. The Administrative Appeals Tribunal (AAT) was required to consider the applicant's eligibility for the visa.

The primary legal issue before the Tribunal was whether the applicant met the requirements of clause 457.223(4)(a) of Schedule 2 to the Migration Regulations 1994, which mandates an approved nomination by a standard business sponsor that has not ceased. The Tribunal also needed to determine the appropriate course of action given the circumstances of the nomination's approval.

The Tribunal found that while S L Insulation Pty Ltd was an approved standard business sponsor at the time of the delegate's decision, its nomination of the applicant had been refused. However, following a subsequent review application lodged by the employer, the Tribunal had set aside the Department's refusal and substituted a decision to approve the nomination. Consequently, the Tribunal was satisfied that the employer was an approved sponsor and now had an approved nomination in respect of the applicant, thus meeting the criteria of clause 457.223(4)(a).

Given that the requirement under clause 457.223(4)(a) was now met, the Tribunal concluded that the appropriate course was to remit the visa application to the Minister for reconsideration of the remaining eligibility criteria for a subclass 457 visa. The Tribunal directed that the applicant be considered to meet the criteria specified in clause 457.223(4)(a).